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Suffolk Law Hosts EPA's Top Official

April 14, 2014

By Tom Mashberg

It has been a good year so far on the legal front for the Environmental Protection Agency, which has won two major regulatory appeals and convinced judges to levy millions in fines against industrial polluters nationwide.

So Gina McCarthy, the Quincy, Mass., native who runs the EPA, was upbeat when she spoke to Suffolk Law School students and others in April 2014 about dealing with “litigation up the yingyang” whenever the agency tries to enforce anti-pollution rules against energy companies.

McCarthy pointed to an important legal win for the government just two days earlier, on April 15, when the U.S. Court of Appeals for the District of Columbia Circuit upheld the mercury and air toxics standards that the Obama administration has imposed on hundreds of older coal- and oil-fired plants. Those standards, aimed at cutting mercury and carbon emissions by forcing older plants to upgrade their sites, have been a major goal of the EPA since 2011. They are expected to come into force starting next year.

McCarthy said the victory was emblematic of the legal challenges facing government lawyers when dueling with deep-pocketed energy giants over how to apply federal legislation. Courts have generally ruled that the language and intent of the Clean Air and Clean Water acts give the agency broad discretion in enforcement actions, but the energy industry often challenges the extent of the EPA’s compliance powers.

In late March, the agency also scored a victory when the Supreme Court refused to hear an industry appeal in a case in which the EPA vetoed a coal-dumping permit that a West Virginia mining company had negotiated with the Army Corps of Engineers. A lower court ruled that the agency could annul deals between energy companies and separate federal entities “whenever” it deemed doing so necessary to protect the environment.

Those kinds of successes, McCarthy said, give heart to an agency that is struggling against strong anti-regulatory sentiment in the House of Representatives and well-funded lobbying and legal efforts by oil and coal interests.

She said the Obama administration is aware of the high costs that come with imposing strict new compliance standards to deal with groundwater pollution and greenhouse gases, especially in a struggling economy. She added that she has long sought “non-confrontational” relations with energy companies. “I have been working pretty closely with the energy sector for a long time,” she said. “We have to live in the real world.”

“Oil in this part of the world remains a reliable and necessary form of energy,” she added. She said the Obama administration’s overarching goal is to push the industry toward cleaner, more renewable forms of energy in a manner that “continues to allow the economy to grow.”

McCarthy visited Suffolk Law School fresh off a trip to Taiwan and Vietnam, and said she was excited to see that many Asian political and business leaders “are pushing us on climate change.”

She said those countries are developing nationalistic outlooks against air and water toxins and pollutants while building citizen support for greenhouse gas reductions and large-scale recycling programs.

McCarthy was the keynote speaker at “The Evolving Energy Landscape,” which was co-chaired by professor Steven Ferrey, who teaches energy, contract and environmental law at Suffolk. Ferrey is a frequent expert witness before Congress and specialist in renewable energy sources and anti-climate change policies in developing countries. The afternoon-long session included representatives from the energy industry, environmentalists, and regional regulators.